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2018 DIGILAW 1892 (ALL)

HEERA LAL v. STATE OF U. P.

2018-08-30

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT Hon’ble Saral Srivastava, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. The petitioner in the instant writ petition has challenged the order dated 16.11.2016 passed by the District Magistrate, Sonbhadra on the representation of the petitioner directing one Chetak Enterprises, Sonbhadra to pay compensation with respect to land of the petitioner used by the State of Uttar Pradesh for the purpose of widening of Varanasi Shakti Nagar Road. 3. The facts in brief giving rise to the present writ petition is that the petitioner was owner in possession of 8 biswa land of plot No. 606/2, situate in village Sukrit, Pargana Ahraura, Tehsil Chunar, District Sonbhadra. It is the case of the petitioner that out of the aforesaid 8 biswa land, the petitioner sold 4 biswa land to Smt. Badrunisha wife of Imtiyaz Ahmad. On the application of Badrinisha, the Consolidator (Kannoongo) submitted a report to the Settlement Officer Consolidation in which it was stated that 4 biswa land of plot No. 606/2 had been used in construction of road. 4. The petitioner submitted a representation to the District Magistrate, Sonbhadra praying for the compensation with respect to 4 biswa land of plot No. 606/2, on which road was constructed be paid to the petitioner, or in alternative, the construction made on the said land be removed and possession of land be handed over to him. When the District Magistrate did not pay heed to the representation of the petitioner, he approached this Court by means of Writ-C No. 46778 of 2016 which was disposed of with a direction to the District Magistrate to decide the representation of the petitioner by a reasoned and speaking order. 5. Pursuant to the direction of this Court, the District Magistrate passed an order dated 16.11.2016 on the basis of the report of the Settlement Officer Consolidation that the road was constructed on 4 biswa land of plot No. 606/2, and directed Chetak Enterprises, Sonbhadra to pay compensation. 6. The petitioner has impugned the aforesaid order dated 16.11.2016 in the instant writ petition. 7. 6. The petitioner has impugned the aforesaid order dated 16.11.2016 in the instant writ petition. 7. This Court had passed the following order on 24.4.2017 : “Writ Petition No. 46778 of 2016 filed by the petitioner for payment of compensation in view of acquisition of his land was disposed of vide judgment and order dated 27.9.2016 directing the competent authority (District Magistrate) to decide the matter by a reasoned and speaking order within three months from the date of production of a certified copy of the order. In pursuance thereof, the District Magistrate has passed the order dated 16th November, 2016 holding that the compensation is to be paid by the contractor Chetak Enterprises, which constructed the road and, accordingly, directed the said company to make payment of the compensation. We fail to understand as to how a construction agency becomes liable to payment of compensation. Let District Magistrate, Sonbhadra appear alongwith the record before us on 5th May, 2017 and satisfy as to under which provision of law, he has directed the construction agency to make payment of compensation. Put up as fresh on 5th May, 2017.” 8. The record reflects that in pursuance of the order of this Court dated 24.4.2017, the District Magistrate/Collector, Sonbhadra appeared before the Court and informed that the order impugned in the writ petition was passed by his predecessor Sri Chandra Bhushan Singh. In view of the said fact, this Court on 5.5.2017 passed the following order : “In compliance of the order dated 24.4.2017, Sri P.K. Upadhyay, District Magistrate/Collector, Sonbhadra is present in person. He has informed that the order dated 16.11.2016, clarification in respect whereof is required by the Court was passed by his predecessor Sri C.B. Singh. He also states before us that he took over the charge as District Magistrate on 11.2.2017. In such circumstances, his personal presence is not required and is exempted. Let a copy of this order be forwarded to the Principal Secretary, Public Works Department who shall ensure that Sri C.B. Singh wherever he is posted appears before the Court in person on 22.5.2017 to satisfy the Court as to under which provision of law he issued a direction that compensation for the land acquired is payable by the construction agency. Put up as fresh on 22.5.2017. Put up as fresh on 22.5.2017. Let a copy of this order be given to the learned Standing Counsel free of cost within 24 hours for being forwarded to the appropriate authority for compliance.” 9. Sri Chandra Bhushan Singh the then Collector, Sonbhadra appeared before the Court and tendered his unqualified apology. This Court had passed the following order on 22.5.2017 : “Mr Chandra Bhushan Singh, the then Collector of the District Sonbhadra, who passed the order impugned in this writ petition, has not been able to point out any provision of law under which direction was issued by him for payment of compensation for the land acquired by the Road Constructing Agency, except for submitting his unqualified apology stating that it was on account of mistake and over sight. He has not explained the lapse, though the issue is very serious. A person holding a charge of Collector/District Magistrate of District is not expected to act in such a casual manner. It was his bounden duty to have corrected the order before putting his signature over it more particularly when the order was being passed in compliance of direction issued by this Court. Though, serious action is warranted against the officer for this lapse, but he has tendered his unqualified apology. Mr Alok Kumar Singh, learned Standing Counsel appearing for him has successfully persuaded us to pardon him. We accept the apology and drop the proceedings by giving a warning to him to be extremely cautious in future. Insofar as the claim of the petitioner is concerned, learned Standing Counsel prays for and is allowed six weeks’ time to file detailed counter-affidavit. Rejoinder-affidavit, if any, may be filed within two weeks thereafter. List this matter after expiry of the aforesaid period.” 10. Thereafter, the respondent No. 3 filed counter-affidavit taking altogether different stand in the counter-affidavit that what has been stated in the impugned order. 11. In the counter-affidavit it has been stated that Consolidator (Kanoongo) submitted a wrong report and on the basis of it, the District Magistrate decided the representation directing the petitioner to contact the respondent No. 5 namely Chetak Enterprises, Sonbhadra, road construction agency, for payment of compensation. It has been further averred that a spot inspection was again conducted in which it was found that no part of the petitioner’s land was taken for widening of the road. It has been further averred that a spot inspection was again conducted in which it was found that no part of the petitioner’s land was taken for widening of the road. It has also been pleaded that a departmental proceeding has been initiated against the Consolidator (Kanoongo) for submitting a wrong report. 12. Learned counsel for the petitioner submits that the order impugned is not sustainable in law inasmuch as 4 biswa land of plot No. 606/2 owned by the petitioner was used for widening of the road. The said fact is corroborated by the report of the Consolidator (Kanoongo) and relying upon the report of the Consolidator (Kanoongo), the District Magistrate in the order impugned held that the petitioner is entitled for compensation for 4 biswa of land. He submits that the petitioner is aggrieved only by the action of the District Magistrate in the impugned order to the extent it directs the petitioner to contact the respondent No. 5 Chetak Enterprises, Sonbhadra, road constructing agency, for payment of compensation. 13. Submission is that there is no provision in law which fastens the liability upon the road constructing agency to pay compensation if the land has been utilized illegally by the respondent State for widening of road. He submits that the concerned District Magistrate appeared before this Court on 22.5.2017 and he could not point out to the Court any provision of law under which he had issued directions to the petitioner to contact respondent No. 5 for payment of compensation for the land used for widening of the road. Thus, the submission is that the direction of the District Magistrate in the impugned order directing the petitioner to approach the constructing agency for compensation is illegal and without jurisdiction. 14. Learned counsel for the petitioner further submits that the respondent No. 3 in the counter-affidavit has taken a somersault by taking a different stand that spot inspection was done again in which it was found that the land of the petitioner was not used for widening of the road. He further submits that the right of the respondents is only to defend the order impugned in the writ petition and respondents cannot be permitted at this stage to take a different stand altogether from what has been stated in the impugned order to defeat the legal claim of the petitioner. He further submits that the right of the respondents is only to defend the order impugned in the writ petition and respondents cannot be permitted at this stage to take a different stand altogether from what has been stated in the impugned order to defeat the legal claim of the petitioner. He further submits that the respondents have deliberately pleaded a different case in the counter-affidavit for the reasons that two officers of the respondents were summoned by this Court and as a result of annoyance, the respondents have taken somersault in taking a different stand in the counter-affidavit. 15. Per contra, learned Standing Counsel submits that the plot of the petitioner was inspected by the Executive Engineer and on 29.4.2017, a fresh inspection of the plot of the petitioner was conducted by the Consolidation Officer, Robertsganj who submitted a report on 29.4.2017 that no land of the petitioner was used for widening of road. Submission is that since the earlier report of the Consolidator (Kanoongo) was not correct and a disciplinary proceeding has been instituted against the Consolidator (Kanoongo), therefore, the petitioner is not entitled for any compensation. 16. On the basis of the pleadings in the counter-affidavit, learned Standing Counsel submits that the writ petition is liable to be dismissed inasmuch as no land of the petitioner was used for widening of the road. 17. We have considered the rival submission of the parties and perused the record. 18. The orders passed by this Court on different dates in the instant writ petition extracted herein-above shows that the officer concerned namely Chandra Bhushan Singh appeared before the Court, and he could not point out any provision in law under which he could issue directions to the petitioner to contact the road constructing agency for payment of compensation, and on tendering unqualified apology and on the basis of his statement that such direction was issued due to mistake and oversight, he was pardoned. In this regard, it is worth noticing that when Sri Chandra Bhushan Singh, the then Collector, who passed the order impugned appeared before this Court on 22.5.2017, he did not take any stand as pleaded in the counter-affidavit that the inspection of the land of the petitioner was carried out and it was found that the land of the petitioner was not used for widening of the road. It is only subsequent, thereto that the respondent took altogether different stand on the basis of of the report of the Consolidation Officer dated 29.4.2017 that the land of the petitioner was not used for widening of the road. 19. It is settled in law that the respondents cannot take a different stand to defend the action from the stand taken in the order impugned. The respondents could not defend the action of the District Magistrate in directing the petitioner to contact the road constructing agency for payment of compensation. The District Magistrate appeared before this Court, he could not defend the direction given by him in the impugned order; and this Court noted in its order dated 22.5.2017 that though the serious action was warranted against the District Magistrate, but as he has tendered unqualified apology, he was pardoned. In view of the aforesaid fact, it is quite natural that the respondent has deliberately taken a different stand to defeat the claim of the petitioner. The chain of events as stated herein-above clearly reflects that the stand taken by the respondents in the counter-affidavit is with a mala fide motive to defeat the claim of the petitioner. 20. The respondents in the counter-affidavit has not defended the direction of the District Magistrate in the impugned order directing the petitioner to approach the road constructing agency for payment of compensation. Even the District Magistrate could not point out before this Court any provision under which such direction could be issued and thus, in view of the aforesaid fact, the direction of the District Magistrate directing the petitioner to approach the road constructing agency for payment of compensation is illegal and without jurisdiction. 21. Thus, for the reasons given above, the writ petition is allowed and the order impugned is set aside to the extent it directs the petitioner to approach the road constructing agency for payment of compensation and further directs the respondents to pay compensation to the petitioner with respect to the aforesaid land on the basis of the market value applicable on the date of the order of the District Magistrate i.e. 16.11.2016. 22. Thus, for the reasons given above, the writ petition is allowed. The respondents are directed to make payment to the petitioner within three months from the date of production of a certified copy of this order before them. 22. Thus, for the reasons given above, the writ petition is allowed. The respondents are directed to make payment to the petitioner within three months from the date of production of a certified copy of this order before them. There shall be no order as to costs.